Pennsylvania Marriage and Divorce Laws for LGBT Couples

Same-sex Divorce in Pennsylvania

In Pennsylvania, separated or divorcing spouses, including same-sex spouses, may seek rights to equitably divide their marital assets and debts and rights regarding spousal support, alimony pendente lite and alimony, amongst other issues

The PA Domestic Relations Code provides many benefits to married couples, including same-sex married couples, who are seeking to separate or divorce. But, to participate in a PA divorce, a couple must be considered married under the laws of the state where the marriage was attempted to be entered into. Divorcing a same-sex couple in PA first requires analysis of the couple's legal date of marriage.

Same sex Marriage in Pennsylvania with PA Marriage License

On May 20, 2014, the opinion of Whitewood vs. Wolfe was announced by a Federal District Court in Pennsylvania. That historic opinion gave Pennsylvania same-sex couples the right to apply for PA marriage licenses and be validly married in Pennsylvania. But, legal problems can still exist for those PA same sex couples who believe that they had acted as a married couple in Pennsylvania prior to May of 2014.

Common Law Marriages for PA Same Sex Couples

On January 1, 2005, common law marriage was abolished in Pennsylvania and any marriage attempted to be entered after that date requires the formality of a marriage license and marriage ceremony to be considered as a marriage entered into validly in the state of Pennsylvania. In re Estate of Stephen Carter was decided by the PA Superior Court in 2016. The Carter case involved the question of whether a same-sex couple could be considered common law married in Pennsylvania. In the Carter case, Mr. Carter was killed in a motorcycle accident and his surviving partner, Michael Hunter, requested recognition of their marriage as a common law marriage entered into in 1997 prior to the abolishment of PA common law marriages in 2005.

The Carter court reviewed the law concerning how a common law marriage could be validly entered into by couples prior to January 1, 2005 and held that Mr. Carter and Mr. Hunter had, in fact, entered into a common law marriage in Pennsylvania as of 1997 and that PA law would recognize and enforce the rights of the same-sex couple as common law married in Pennsylvania.

Obergefell v Hodges - Same Sex Marriages outside PA

In 2015, the US Supreme Court decided the case of Obergefell v. Hodges which held that states must issue marriage licenses to same-sex couples and must recognize the validity of a same sex marriage entered into by the couple in another state. The Obergefell case was significant in forcing state courts to recognize the validity of same sex marriages in jurisdictions permitting the same even when that state did not yet authorize same-sex marriages. The Obergefell decision required all US States to recognize the right of same-sex couples to marry.

If a same-sex couple believes they were validly married outside of Pennsylvania but wishes to file for recognition of their marriage in Pennsylvania (including the right of same-sex divorce in PA and spousal support for same-sex couples in PA), the PA same-sex family lawyer, must analyze the law in the state of the same-sex marriage to determine the validity of the same-sex marriage and the effective date of the marriage.

Date of Marriage Issues for Divorcing PA Same-Sex Couples

The Pennsylvania Domestic Relations Code provides that when divorcing, a married couple will divide the marital assets and debts acquired from date of marriage through date of separation. In PA the process of dividing marital assets and debts is known as equitable distribution. To participate in the equitable distribution process, the spouses and their PA divorce lawyers must identify the date of marriage as well as the date of separation.

Given the Whitewood and Carter opinions, it appears that PA same-sex couples may only claim a valid PA marriage entered via a marriage license on or after May 20, 2014 or by common law marriage prior to January 1, 2005. So, what about same sex marriages in PA that are believed to be entered into after January 1, 2005 and before May 20, 2014?

It does not appear as if a PA court has yet determined the validity of same sex marriages attempted to be entered into in Pennsylvania between January 1, 2005 and May 20, 2014. This issue is ripe for an experienced and skilled same-sex divorce lawyer in PA to argue for recognition before the PA Family Courts.

Civil Unions of Other States Recognized as Marriage by PA Courts

In June of 2016, the PA Superior Court decided the case of Neyman v. Buckley. In Neyman, the same-sex couple had entered into a civil union in Vermont. Vermont law specifically permits civil unions as well as same-sex marriages and now conveys the same rights to a civil union as to a married couple. The parties in the Neyman case sought to dissolve their Vermont civil union by filing a Divorce Complaint in Pennsylvania. The PA court on appeal held in the Neyman case that PA Family Courts must recognize the laws of civil union laws of another state and therefore held the Vermont civil union may be dissolved by the filing of a PA Complaint in Divorce and issuance of a PA Divorce Decree.

They Neyman case clearly holds that PA Family Courts must recognize a valid civil union of another state and provide the same rights and protections afforded a civil union of another state. But, Pennsylvania law has yet to recognize a civil union entered into in Pennsylvania as conveying the same rights relating to divorce, equitable distribution and spousal support as a married couple under the PA Domestic Relations Code. So, if a same-sex couple was united by a legally valid Civil Union in state outside of Pennsylvania, PA will recognize the same-sex civil union.

Domestic partnership rights are afforded to Pennsylvania same-sex couples in the City of Pittsburgh, Philadelphia, Lucerne County, Easton, Allentown, Harrisburg and State College, PA. Each city, borough or county in Pennsylvania that recognizes domestic partnership has its own set of rules regarding what benefits are afforded the domestic partner and when those benefits will begin to exist. Some PA local rules regarding domestic partnerships require that the couple must enter into a valid marriage after May 20, 2014 for benefits to continue to the partner. All local PA laws on domestic partnerships indicate that the PA domestic partner cannot be married to another person if they wish to claim domestic partnership benefits.

Given the expanding protections afforded same-sex partners in Pennsylvania and throughout the country, it seems like it is a perfect time for a skilled same-sex marriage lawyer to argue that domestic partnerships in Pittsburgh and other local PA communities where they have been afforded rights should be recognized as valid marriages under PA law. Let's take on that challenge!

Prenuptial Agreements for PA Same-Sex Marriages

In Pennsylvania prenuptial agreements, the intended spouses are oftentimes seeking to limit their financial exposure if the parties later decide to divorce or to set forth rights regarding inheritance if one spouse dies during the course of the marriage. Prenuptial agreements for PA same-sex marriages would be beneficial to define the gay or lesbian's rights in the event of divorce in the same manner or to provide greater benefits to one of the same sex divorcing spouses.

As previously stated, the date of marriage is a significant legal event as it defines the earliest date in which a spouse can that assets constitute marital property. The date of marriage is also significant in evaluating the length of the marriage and whether a spouse should be awarded alimony or other spousal support.

Many same-sex relationships started long before the PA courts recognized same-sex marriage in 2014. Same-sex couples may have long-standing financial relationships with their partners that included purchasing of assets such as real estate, joint banking accounts and other financial as well as emotional attachments prior to 2014. Same-sex couples could have acted as a family unit and been raising children long before their legal right to marry in Pennsylvania.

Long term same sex couples in PA should consider whether they wish to define the date of their marriage as well as rights regarding equitable distribution, spousal support and alimony through the creation of a prenuptial agreement. A prenuptial agreement for same-sex couple marrying in PA could help alleviate many of the financial and legal burdens of establishing their date of marriage through the Pennsylvania Family Courts. A prenuptial contract for an engaged gay or lesbian couple in PA could also help eliminate nasty issues of support and equitable distribution if the same-sex couple later decides to divorce.

Prior to the Whitewood and Obergefell cases, some PA same sex couples would resort to adoption of their same sex partner so that legal rights regarding inheritance and medical decisions could be enforced by the gay or lesbian couple. If a same-sex couple in PA completed the adoption of their adult PA partner, that couple must now reverse the adoption in order for a same sex marriage in PA to be valid.

In December of 2016, the PA Superior Court issued its decision in the case of In re Adoption of R.A.B., Jr.. That court held that an adult adoption for the sake of providing a family unit prior to the decisions in Whitewood and Obergefell may be revoke or annulled so that the same-sex couple may pursue their rights as a married couple under PA and federal laws.

Same-sex couples who have been joined by civil unions or domestic partnership agreements must look to the state law where their civil union was formed to determine if the civil union will be treated the same as a marriage and require a divorce to end the civil union or require some other means to end the relationship. Domestic partners may also need to end their legal arrangement before they can pursue a legally binding same-sex relationship including marriage with another partner.

Same-sex relationships and Bigamy under PA law.

With the recognition of same-sex marriages and some civil unions has also come the responsibility of ending those relationships appropriately. LGBT individuals should be aware that they could be committing bigamy also defined as entering into a subsequent marriage while already married if they fail to properly end their previous same-sex marriage or civil union.

In Pennsylvania, a subsequent marriage when a person is already lawfully married is considered bigamy or a bigamous relationship. Pennsylvania law provides that the second marriage will be considered void and of no effect if the individual was married to another at the time of the second marriage. The second spouse will be left out of the protections of the Divorce Code, the Inheritance statutes and many other benefits that same-sex couples fought so hard to obtain.

Do not minimize the impact of a previous same-sex relationship and its status under state and federal law. Same sex relationships now how legal rights for marriage but also have the legal obligation of divorce to end one appropriately.

Same sex marriages are now legal in all 50 states but divorcing a same-sex spouse in Pennsylvania still has legal challenges that heterosexual couples seeking a divorce do not face. If you are contemplating a same-sex marriage in PA, contact our experienced lawyers for an consultation and analysis of any prior relationship you had and its legal importance or for a prenuptial agreement prior to marrying your same-sex partner. If you have entered into a same-sex marriage in PA or another state, contact our team of highly knowledgeable lawyers if you are considering a divorce from your same-sex spouse. You may also telephone one of our offices at the following numbers:

Pittsburgh in Allegheny County PA - 412-281-9906

Cranberry Township in Butler County PA - 724-776-9906

Canonsburg in Washington County PA 724-436-5500

Clearfield in Clearfield County PA 814-290-0587

Toll Free 1-844-827-4529 (1-844-VARI-LAW)

In addition to same-sex marriage and divorce issues, our Pennsylvania attorneys have extensive experience in providing legal assistance to LGBT individuals regarding second parent adoptions of a biological parent's child and other parenting relationships, as well as establishing custody rights of the former partner's minor children.

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